Phillipa Susan van Zyl NO v The Road Accident Fund

On 1 May 2010, Mr Koos Jacobs sustained serious head injuries in a motor vehicle collision at Willowmore, Eastern Cape. He suffered left hemiparesis, communication difficulties and Organic Brain Syndrome. He lodged a claim with the RAF on 18 January 2017, approximately seven years after the accident. On 28 November 2017, the appellant was appointed as curatrix ad litem to Mr Jacobs by court order. On 8 March 2018, the appellant instituted action against the RAF claiming damages on behalf of Mr Jacobs. The RAF defended the action and raised a special plea of prescription, arguing that the claim was not lodged within three years of the accident as required by section 23 of the RAF Act and that Mr Jacobs did not fall within the categories of persons referred to in section 23(2) at the relevant time. The appellant argued that section 13(1) of the Prescription Act 68 of 1969 applied, as Mr Jacobs had been insane/of unsound mind since the accident and prescription should not have run against him. The Eastern Cape High Court (Bloem J) upheld the special plea, finding that the claim had prescribed.

• Whether the running of prescription in respect of a claim for damages under the Road Accident Fund Act 56 of 1996 is governed exclusively by section 23 of that Act
• Whether section 13(1) of the Prescription Act 68 of 1969 also applies to claims under the RAF Act
• Whether mentally incapacitated persons who are not detained under mental health legislation or under curatorship at the time of the accident are protected from prescription under the RAF Act
• Whether the interpretation of section 23 of the RAF Act infringes the right of access to courts under section 34 of the Constitution

The appeal was dismissed with no order as to costs.

Section 23 of the Road Accident Fund Act 56 of 1996 regulates prescription of claims under that Act exclusively and to the exclusion of the Prescription Act 68 of 1969. The provisions of the two Acts are inconsistent, particularly regarding when prescription begins to run. Section 23(1) of the RAF Act uses the words 'notwithstanding anything to the contrary in any law' to indicate legislative intention that it apply regardless of any other legal rule. Section 16 of the Prescription Act provides that the Prescription Act applies save insofar as its provisions are inconsistent with provisions of any other Act of Parliament. The RAF Act was drafted specifically to regulate a separate area (claims against the RAF) comprehensively and to exhaust its subject matter. Section 12(3) of the Prescription Act (requiring knowledge of the debtor and facts) is inconsistent with section 23(1) of the RAF Act (which relies simply on the date the cause of action arose). Mentally incapacitated persons are only protected from prescription under the RAF Act if they fall within the categories specified in section 23(2): minors, persons detained under mental health legislation, or persons under curatorship. The appointment of a curator after prescription has already run does not retrospectively render a person protected under section 23(2)(c).

The Court noted that when interpreting legislation, courts must promote the spirit, purport and objects of the Bill of Rights per section 39(2) of the Constitution. Following Makate v Vodacom, where a provision is capable of more than one meaning, courts should adopt the meaning that does not limit Bill of Rights rights, and preferably one that promotes those rights. However, the Court found that section 23 of the RAF Act does not affect mentally incapacitated persons' right of access to courts (section 34 of the Constitution) if they are detained under mental health legislation or under curatorship, as prescription is suspended in those circumstances. The Court observed that the incidence of prescription in Mr Jacobs' case should have been managed by timeous detention under mental health legislation or timeous appointment of a curator ad litem. The Court expressed sympathy for Mr Jacobs' position, noting it as 'regrettable', but held that the Constitutional Court had already considered and determined the interpretation of the RAF Act. The Court departed from the general rule that costs follow the result, making no order as to costs due to Mr Jacobs' impecuniosity resulting from the severity of his injuries. The Court noted the historical background: the words 'notwithstanding the provisions of any other law relating to prescription' were first inserted by the Compulsory Motor Vehicle Insurance Amendment Act 69 of 1978 in reaction to confusion about whether prescription was governed by third party compensation legislation or by the Prescription Acts of 1943 and 1969, and this formulation has been retained in all subsequent third party compensation legislation.

This case definitively confirms that the prescription of claims under the Road Accident Fund Act 56 of 1996 is governed exclusively by section 23 of that Act, and that the provisions of the Prescription Act 68 of 1969 do not apply due to inconsistency between the two Acts. The judgment clarifies that mentally incapacitated persons are only protected from prescription under the RAF Act if they fall within the specific categories listed in section 23(2): minors, persons detained as patients under mental health legislation, or persons under curatorship. The case confirms that the Constitutional Court decision in Road Accident Fund v Mdeyide impliedly overruled the earlier SCA decision in Road Accident Fund v Smith NO. The judgment provides important guidance on statutory interpretation where two statutes deal with the same subject matter and are inconsistent, and confirms that section 16 of the Prescription Act gives way to the specific provisions of the RAF Act. The case highlights the importance of timeous appointment of curators for mentally incapacitated persons to protect their claims from prescription.